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Justices to Hear Case on Recusal Laws

WASHINGTON — The Supreme Court on Friday agreed to decide whether states may forbid government officials to vote on matters where they appear to have a personal conflict. The case, which concerns a member of a city council in Nevada, was one of seven the court added to its docket.

Eight states, led by Florida, had urged the court to hear the case, Nevada Commission on Ethics v. Carrigan, No. 10-568. Their brief said that recusal laws for public officials were “a measured response to the credibility gap between the public and its public officials.”

Nevada’s law requires elected officials to disqualify themselves, much as judges often do, when they are asked to vote on matters that touch on what the law called “commitments in a private capacity.”

In 2006, not long before an election, a member of the Sparks City Council, Michael A. Carrigan, disclosed that his campaign manager was a consultant to a business seeking to develop a casino, before voting its way in a land-use matter. The Nevada Commission on Ethics later ruled that the vote was improper and censured Mr. Carrigan.

The Nevada Supreme Court reversed that decision, saying it violated the First Amendment and citing the Supreme Court’s decision last year in Citizens United. “Voting by an elected public officer on public issues is protected speech under the First Amendment,” Justice Michael Douglas wrote for the majority.

In dissent, Justice Kristina Pickering called that assertion “both unprecedented and unwise.” She said that voting by a public official is conduct rather than protected speech.

Citizens United may also figure in a second First Amendment case that the court agreed to hear on Friday, Sorrell v. IMS Health, No. 10-779, which involves database mining and drug marketing.

Three states — Maine, New Hampshire and Vermont — have laws prohibiting some but not all uses of information collected by pharmacies in filling prescriptions. The laws restrict data mining companies that collect and analyze prescription information and sell it to drug companies eager to know how to tailor their marketing efforts to doctors.

The case is not about patients’ privacy rights, as individual information about them is stripped from the data.

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The lower courts have divided over whether the laws, largely identical, are constitutional. The case the court agreed to hear came from Vermont by way of the United States Court of Appeals for the Second Circuit, in New York.

The Vermont law forbids the sale of prescription data to market drugs and bars drug companies from using the data to market drugs, unless the prescribing doctor consents. But other uses are allowed, including ones by law enforcement, insurance companies and journalists.

The Vermont Legislature, in a possible misstep, explained that it enacted the law because “the marketplace for ideas on medicine safety and effectiveness is frequently one-sided.”

But the Supreme Court has often been wary of governmental efforts to level the free-speech playing field and said so again in Citizens United.

A divided three-judge panel of the Second Circuit struck down the Vermont law. A visiting federal trial court judge, Judge John G. Koeltl, wrote that the law was an unconstitutional regulation of commercial speech, saying, “The statute seeks to alter the marketplace of ideas by taking out some truthful information that the state thinks could be used too effectively.”

A dissenting Second Circuit judge, Debra Ann Livingston, said Vermont had made “eminently reasonable legislative judgments.”

“I am unwilling to accept the majority’s conclusion that such business operations have an inherent right to invoke the First Amendment as a shield against reasonable regulation,” she wrote, “simply because their business deals in ‘dry information’ rather than dry goods.”

A version of this article appears in print on January 8, 2011, on Page A11 of the New York edition with the headline: Justices to Hear Case on Recusal Laws. Order Reprints|Today's Paper|Subscribe